Lindsay v Warwick Shire Council
[2005] QSC 94
•29 April 2005
SUPREME COURT OF QUEENSLAND
CITATION:
Lindsay & Anor v Warwick Shire Council [2005] QSC 94
PARTIES:
ALISTER ATHOL LINDSAY and
JULIE ANN LINDSAY
(applicants)
v
WARWICK SHIRE COUNCIL
(respondent)FILE NO:
BS1146 of 2005
DIVISION:
Trial Division
PROCEEDING:
Originating application
DELIVERED ON:
29 April 2005
DELIVERED AT:
Brisbane
HEARING DATE:
4 March 2005
JUDGE:
Mullins J
ORDER:
Application adjourned to a date to be fixed
CATCHWORDS:
REAL PROPERTY – GENERAL PRINCIPLES – REGISTRATION – GENERAL – where local authority entered agreement with registered owner of land that stated it was pursuant to s 5.8 of the Local Government (Planning and Environment) Act 1990 (Q) – where agreement registered on title – where title transferred to subsequent registered owner – whether local authority had power to enter agreement – whether appropriate to make declaration that the agreement was not one to which s 5.8 of the Local Government (Planning and Environment) Act 1990 (Q) applied
Acts Interpretation Act 1954
Land Title Act 1994
Local Government Act 1936
Local Government (Planning and Environment) Act 1990COUNSEL:
GJ Gibson QC for the applicants
WG Everson for the respondentSOLICITORS:
Hyland Lawyers for the applicants
Gudkovs Power Osborne for the respondent
MULLINS J:The applicants are the registered owners of Lots 1 and 4 on RP 193305 in the County of Merivale Parish of Rosenthal (“Lots 1 and 4”). Before they completed their purchase of Lots 1 and 4, they were aware that Local Government Agreement No 601520464 (“the agreement”) was noted on both titles. By their originating application filed on 14 February 2005 the applicants seek a declaration that the agreement is not an agreement to which the provisions of s 5.8 of the Local Government (Planning and Environment) Act 1990 (“LGPE Act”) applied. If that declaration were made, and it became necessary to do so, they also seek an order (the terms of which had not been settled) which would have the effect of compelling the respondent to consent to the registration of the cancellation of the agreement. The jurisdiction for making the consequential order was not explored to any significant extent in the submissions made on the application.
Facts
The respondent is the successor to the Rosenthal Shire Council (“Rosenthal”). Rosenthal entered into an agreement on 10 May 1985 with Mr Brian Parker and Edward Street Properties Pty Ltd in connection with a proposed plan of subdivision numbered 196907 (“the original agreement”). The original agreement recited that the parties resolved to enter into the agreement pursuant to the provisions of s 33(1B) of the Local Government Act 1936 (“1936 Act”). Section 33 of the 1936 Act regulated town planning. Section 34 of the 1936 Act regulated subdivision of land. The parties to the original agreement agreed in the following terms:
“Upon registration of Plan No. 196907 it is hereby agreed by and between the parties that Lot 2 on Plan No. 196907 and Lots 1, 3 and 4 on Registered Plan No. 193305 shall be used conjointly and shall remain in the same ownership and shall not be capable of separate disposition unless and until the consent of the said Council is obtained pursuant to the provisions of Section 33(1B)(c) of the said Local Government Amendment Act of 1981 or as further amended.”
The original agreement was registered under dealing number H608408.
Rosenthal endorsed its approval of plan 193305 which subdivided Lot 2 on MI.1649 into Lots 1 to 4 on 31 January 1984. The separate titles for Lots 1 to 4 were created by 23 October 1984. Plan 196907 effected a subdivision of Lot 2 on RP193305 and parts of Subdivision 1 on MI.1684 and Resubdivison 1 on MI.1650 and thereby created Lots 1 and 2 on RP196907. Rosenthal endorsed its approval on Plan 196907 on 9 November 1984. The approval was subject to the registration of an application to register an agreement in accordance with s 33(1B) of the 1936 Act and subject to Lot 2 on RP196907 (“Lot 2”) being held in the same ownership as Lots 1, 3 and 4 on RP193305. Curiously the endorsement of that condition on RP196907 shows that the condition originally endorsed (before alteration) required the agreement to be made pursuant to s 34(12G) of the 1936 Act. The reference to that section was deleted and s 33(1B) was substituted. The operative terms of the original agreement reflect that it was made under s 33(1B) of the 1936 Act.
In 1984 Lots 1 and 4 and Lot 3 on RP193305 (“Lot 3”) and Lot 2 were in the Rural A zone. Under the town planning scheme that was in force at that time the minimum area permitted for an allotment in the Rural A zone was 100 hectares. The area of Lot 1 of 397.398 hectares exceeded that minimum, but each of Lot 4, Lot 3 and Lot 2 had an area less than 100 hectares. The area of Lot 4 is 77.72 hectares.
Mrs A M Rae subsequently became the registered owner of Lot 2 and Lots 1, 3 and 4. After Mrs Rae had entered into a contract to sell Lot 2, she became aware of the requirement under the original agreement and sought the consent of Rosenthal to her selling Lot 2. By resolution passed on 6 May 1993 Rosenthal agreed to the sale of Lot 2 on the proviso that Lot 3 was either transferred to Rosenthal for future road/Local Government purposes or transferred into the same ownership as the adjoining land. Mrs Rae then entered into the agreement with Rosenthal on 11 August 1993 that the parties recited was pursuant to s 5.8 of the LGPE Act. The operative part of the agreement provided:
“IN CONSIDERATION of the Council having given its consent to cancel the Agreement No. H608408 aforesaid. IT IS HEREBY AGREED by and between the parties as follows:
1.Lots 1 and 4 on Registered Plan No 193305 shall be used conjointly and shall remain in the same ownership and shall not be capable of separate disposition unless and until the consent of the said Council is obtained pursuant to the provisions of Section 5.8 of the said Local Government (Planning and Environment) Act 1990 or as further amended.”
That was the agreement that was registered under number 601520464, after registration of the request to record the cancellation of the original agreement.
Pursuant to the town planning scheme that was in force at the time the agreement was entered into, Lots 1 and 4 were in the Rural A zone for which the minimum area permitted for an allotment remained 100 hectares.
The applicants purchased Lots 1 and 4 from Mrs Rae pursuant to a contract dated in or about December 1994. They became registered as owners of that land on 12 October 1995.
Pursuant to the respondent’s current planning scheme, Lots 1 and 4 are within the Rural Pastoral Land Use Area where the minimum lot area is 500 hectares.
Issue
The applicants have been advised that s 5.8 of the LGPE Act did not allow for the registration of the agreement in the circumstances in which it was made and that it is void at law. By their solicitors’ letter dated 22 October 2004, the applicants sought the respondent’s agreement to the withdrawal of the registration of the agreement on the titles to Lots 1 and 4. The respondent refused to agree to this course.
The issue raised by the terms of the application is whether the applicants are entitled to seek the registration of the cancellation of the agreement on the basis that it is void, as it was not an agreement to which s 5.8 of the LGPE Act applied at the date it was made.
Relevant legislation
Section 33(1B) of the 1936 Act provided:
“(a) Where lands in the same ownership are separated by a road and such lands are proposed to be used conjointly for a purpose that is permissible under a town planning scheme, it shall be competent for the Local Authority to enter into an agreement with the owner of such lands providing for their conjoint use for such purpose subject to the lands in question remaining in the same ownership.
(b) Where an agreement pursuant to paragraph (a) has been entered into the Local Authority shall within a period of 30 days from the date thereof produce to the Registrar of Titles an application to register the agreement referred to, accompanied by an executed copy of the agreement, and the Registrar of Titles shall register that agreement upon all grants or certificates of title to the lands concerned and thereafter such agreement shall, until it is cancelled, be binding upon every person who was, at the time of making thereof, or who at any time after the making thereof becomes possessed of an estate or interest in or in connection with such lands.
(c) An agreement registered pursuant to paragraph (b) may be cancelled either wholly or in part, and upon the application of the registered proprietor of the lands, the subject of the agreement, with his signature duly attested pursuant to the provisions of section 115 of the Real Property Act 1861-1980 and with the written consent of the Local Authority endorsed thereon, the Register of Titles shall endorse a memorial on the grants or certificates of title to the lands concerned to the effect that the agreement is cancelled either wholly or in part as the case may be.”
Section 33 of the 1936 Act was repealed by the LGPE Act, the substantive provisions of which commenced on 15 April 1991. The provision in the LGPE Act which corresponds to s 33 of the 1936 Act is s 4.17 of the LGPE Act which provides:
“Conjoint use of lands which are not adjoining lands
4.17(1) Where lands—
(a) are not adjoining lands; and
(b) are held in common ownership; and
(c) are not more than 500 m from each other; and
(d) are proposed to be used conjointly for a purpose that is either
permitted or permissible under a planning scheme;
and all necessary approvals required under the planning scheme and this Act have been obtained, the local government may enter into an agreement with the owner of those lands to allow for their conjoint use for that purpose conditionally upon the lands remaining in common ownership.
(2) Where an agreement pursuant to subsection (1) has been entered into, the local government is to apply to the relevant registering authority to register or record the agreement and a signed copy of the agreement.
(2A) The registering authority is to record particulars of that agreement on the register in respect of the relevant lands and thereafter the agreement is, until it is cancelled, binding on successors in title.
(3) An agreement registered pursuant to subsections (2) and (2A) may be cancelled (in whole or in part) upon the application of the owner of the lands which are subject to the agreement and with the approval of the local government endorsed thereon.
(4) Where an agreement has been cancelled (in whole or in part), the
registering authority is to make a recording in the register in respect of the relevant lands to the effect that the agreement is cancelled (in whole or in part) as the case may be.”
The forerunner to subsections (3) to (3D) of s 5.8 of the LGPE Act was found in s 34(12G) of the 1936 Act. Section 34 of the 1936 Act was also repealed by the LGPE Act. Subsections (3) to (3D) of s 5.8 of the LGPE Act provide:
“(3) Subject to subsection (3A) and notwithstanding any planning scheme provision or local law (whether made before or after the commencement of this Act) which specifies a minimum area for an allotment in a subdivision of land, it is lawful for a local government to approve an application for the subdivision of land which provides for an allotment having an area less than the minimum prescribed in that planning scheme provision or local law where—
(a) the land to be subdivided is or will be intersected by a river, creek, stream or road (whether constructed or not) or an allotment created for the provision of public utility services; and
(b)the owner of the land, the subject of the application, and the local government have entered into an agreement that any proposed allotment which has an area less than the minimum specified area be incapable of separate disposition but that the ownership of the proposed allotment be held in common with another allotment in the proposal plan which would have been contiguous to the proposed allotment if it were not separated in the manner referred to in paragraph (a).
(3A) The total area of the proposed allotments to be held in common ownership under subsection (3) is to comply with the planning scheme provisions or local law of the local government as to the minimum area for allotments.
(3B) Where a local government has approved an application for subdivision of land pursuant to subsection (3) the approval is to indicate, in respect of each allotment having an area less than the minimum area specified, the other allotment contained in the plan of survey with which the first mentioned allotment is to be held in common ownership, and that indication is to be noted on the plan lodged for registration or recording with the relevant registering authority pursuant to section 5.3(6).
(3C) The registering authority may register or record a plan of survey lodged with it and containing a notation by the local government in accordance with subsection (3B), but is not to register or record the plan unless an application to register the agreement referred to in subsection (3)(b) accompanied by a signed copy of the agreement is produced and the registering authority is to record the agreement upon all grants or certificates of title to the lands concerned and then the agreement is, until it is cancelled, binding upon every person who is, at the time of making of the agreement, or who at any time after the making of the agreement, has an interest in those lands.
(3D) An agreement registered or recorded pursuant to subsection (3C) may be cancelled either in whole or in part, and upon the application of the present owner of the lands, the subject of the agreement, with the owner’s signature duly attested in accordance with the requirements of the registering authority and with the written authorisation of the local government endorsed on the application the registering authority is to make a notation on the instruments of title to the relevant lands to the effect that the agreement is cancelled either in whole or in part, as the case may be.”
Section 8.10(8)(a) of the LGPE Act is a transitional provision which provides:
“(8) (a) Each approval, consent or permission (but not any conditions attaching thereto) granted by a Local Authority or the Governor in Council prior to the commencement of this Act, and which is in force immediately prior to the commencement of this Act, is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, made pursuant to this Act (but any conditions attaching thereto are still to apply as if this Act had not commenced).”
Applicants’ submissions
The primary contention of the applicants is that the agreement was not one to which s 5.8(3) of the LGPE Act applied, as it was not supported by any underlying application or approval for the subdivision of the land, as required by the opening paragraph of that provision.
It is argued that, subject to the operation of the Acts Interpretation Act 1954 (“the AIA”), the original agreement could not be lawfully cancelled (either wholly or in part) after the commencement of the LGPE Act because s 5.8(3B) of the LGPE Act expressly permitted “an agreement registered … pursuant to subsection (3C)” to be cancelled and the original agreement was not such an agreement, as it was not “registered .. pursuant to subsection (3C)”. Although the original agreement was registered pursuant to s 33(1B)(b) of the 1936 Act, it is argued that the authority for cancelling such an agreement (either wholly or in part) was found in s 33(1B)(c) of the 1936 Act which was terminated by the repeal of s 33 of the 1936 Act which was not in any way affected by the operation of any relevant transitional provision in s 8.10 of the LGPE Act. It is therefore argued that the purported cancellation of the original agreement was of no legal effect.
The position taken by the applicants on the application of s 20 of the AIA is that there was no “right” or “privilege” on the part of Mrs Rae to have the original agreement cancelled. It is contended that, after the repeal of the 1936 Act, the only way in which the original agreement could be cancelled (either wholly or in part) was by adopting the procedures in s 5.8 of the LGPE Act. Because those procedures were not followed, it is submitted that the conclusion must be reached that the agreement is not an agreement to which the provisions of s 5.8 of the LGPE Act applied, making it appropriate for the applicants to obtain the declaration sought in the application.
Respondent’s submissions
The respondent relies on the definition of “subdivision” in s 1.4 of the LGPE Act at the time that Mrs Rae approached Rosenthal for its consent to the sale of Lot 2 on RP196907 separately from the other land referred to in the original agreement. The respondent argues that the effect of the resolution of Rosenthal made on 6 May 1993 was to facilitate making Lot 2 immediately available for separate disposition or separate occupation, as contemplated by the definition of “subdivision”.
It is also argued by the respondent that the effect of Rosenthal’s resolution of 6 May 1993 was to modify the original agreement in respect of Lot 2 and Lot 3, but to keep the original agreement effective with respect to Lots 1 and 4. If the applicants were correct in their contention that the agreement were unlawful, the respondent’s position is that the original agreement must remain effective with respect to the applicants’ interests in Lots 1 and 4.
The respondent relies upon the reference to the dealing number of the original agreement on the reverse of RP193305 which is Ex GLH7 to the affidavit of Mr Hyland as notice to the applicants of the original agreement as a registered interest.
Nature of the original agreement
The reason why Rosenthal acted under s 33(1B) of the 1936 Act, rather than s 34(12G) of the 1936 Act, in entering into the original agreement is suggested by the terms of s 34(12G). An agreement under s 34(12G) of the 1936 Act could be entered into by the local authority only in connection with an approval of an application for a subdivision of land which resulted in an allotment having an area less than the minimum prescribed in a relevant by-law where the land to be subdivided was intersected by a river, creek or stream or surveyed road and the proposed allotment that would have less than the minimum area prescribed by the relevant by-law would be held in the same ownership as that of other allotments in the same plan of subdivision which were not contiguous by virtue of being separated by such river, creek or stream or surveyed road. Because Lot 2 was created by a plan of subdivision that took effect after the plan of subdivision that created Lot 1, Lot 2 was not an allotment created by the same plan of subdivision that created Lot 1 and there was no room for the application of s 34(12G) in connection with the approval of the subdivision effected by plan 196907.
There is no suggestion in the material or arguments put before the court on this application that the circumstances applying at the time of the original agreement did not fall within s 33(1B) of the 1936 Act.
Anomalies surrounding the agreement
Rosenthal did not seek to give effect to its resolution of 6 May 1993 by agreeing to the cancellation of that part of the original agreement that related to Lot 3 and Lot 2, in order to enable Mrs Rae to sell Lot 2. The parties chose to cancel the original agreement in its entirety and enter into the agreement. Although the agreement recites that the parties resolved to enter into the agreement pursuant to s 5.8 of the LGPE Act, the operative part of the agreement provides for conjoint use of land separated by a road and requires them to remain in the same ownership and not be capable of separate disposition. That accords with the subject matter of s 4.17, rather than s 5.8, of the LGPE Act.
There is no basis whatsoever that Rosenthal’s resolution of 6 May 1993 can be characterised as being made in connection with the approval of an application for the subdivision of land. Lot 2 was an existing allotment and the resolution did not create any division of land. The agreement applied only to Lots 1 and 4.
Although submissions were directed at the source of the power exercised by Rosenthal to cancel the original agreement in the light of the repeal of s 33 of the 1936 Act, it is not necessary to consider that matter. The original agreement was removed from the register, before the applicants became the registered owners of Lots 1 and 4 and the existing registration relates only to the agreement. The observation should be made, however, that the noting of the dealing number of the original agreement on the reverse of RP 193305 in the column entitled “For Titles Office Use Only” did not amount to notice to the applicants of the original agreement as a registered interest affecting Lots 1 and 4.
As the agreement is registered on the titles of Lots 1 and 4, the applicants hold their interests in Lots 1 and 4 subject to that registered interest: s 184(1) of the Land Titles Act 1994. The applicants have therefore sought to challenge the validity of the agreement in order to procure the consent of the respondent to the cancellation of the registration of the agreement. It follows from the subsisting registration of the agreement, that it is the agreement which applies to Lots 1 and 4 and not the original agreement.
Whether the agreement is invalid
Although I have framed the issue as one of the validity of the agreement, the relief that is sought by the applicants is a declaration that is narrower in scope in that it deals solely with whether the agreement was one to which s 5.8 of the LPGE Act applied. The focus of the submissions was therefore on the applicability of that provision at the time the agreement was entered into.
The terms of s 5.8 of the LPGE Act are such that the conclusion can be reached that the agreement was not one to which s 5.8 of the LPGE Act applied. In view of the fact that the declaration is sought as the first step in endeavouring to obtain removal of the agreement from the register, it would not be an appropriate exercise of the power to make a declaration in the specific terms which are sought by the applicants, if the declaration were technically correct, but there was still a basis on which it could be found that the agreement was made after a valid exercise of power of Rosenthal.
During the hearing of this application, I was concerned about the lack of symmetry between s 33(1B) of the 1936 Act and s 5.8 of the LGPE Act and the lack of any relevant transitional provision upon the repeal of the 1936 Act and the commencement of the LPGE Act. After the hearing I sought submissions from the parties on whether the original agreement could be treated as embodying an approval, consent or permission of Rosenthal for the purpose of s 8.10(8)(a) of the LGPE Act and whether that original agreement could therefore be treated as if it were made pursuant to s 5.8 of the LGPE Act.
The submissions made on behalf of the applicants were to the effect that the original agreement was not an “approval, consent or permission” as that phrase appears in s 8.10(8)(a) of the LGPE Act as those terms are used in a particular context. I am satisfied that the original agreement entered into under s 33(1B) of the 1936 Act was not such an “approval, consent or permission” so as to attract the operation of s 8.10(8)(a) of the LGPE Act.
Part of my concern about the lack of symmetry between the provisions that were the subject of the submissions at the hearing is met by the realisation that s 5.8 of the LGPE Act was not the successor provision to s 33(1B) of the 1936 Act. There was clearly an error made by of Rosenthal and Mrs Rae in referring to s 5.8 of the LGPE Act in the agreement, as the original agreement did not purport to be made under its predecessor, being s 34(12G) of the 1936 Act.
No submissions were made at the hearing or subsequently on whether the agreement could be treated as having been entered into under s 4.17 of LGPE Act, despite the recital of the agreement that referred to the parties’ resolving to enter into the agreement pursuant to s 5.8 of the LGPE Act. Even though that provision is repeated in the operative part of the agreement, the substance of the agreement relates to matters that could properly have been the subject of an agreement pursuant to s 4.17 of the LGPE Act, if there existed the conditions that enabled s 4.17 to be applied by Rosenthal at the time the agreement was entered into, and would then have been regulated by s 4.17.
I am not prepared to make the declaration in the narrow terms sought by the applicants, unless it is clear that the agreement is invalid and is not otherwise maintainable under s 4.17 of the LGPE Act.
I therefore will order that the application be adjourned to a date to be fixed to enable the parties to consider these reasons and to re-list the matter before me for further argument, if necessary. If the matter is to be pursued, it will be necessary for the parties to address in detail the terms of the consequential relief sought by the applicants and the power of the court to grant such relief.
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